Decision 2563E – Napa Valley Community College District
SF-CE-3166-E
Decision Date: May 25, 2018
Decision Type: PERB Decision
Description: The Office of the General Counsel dismissed the charge, which alleged that the employer retaliated against the charging party by withdrawing an offer of employment and terminating his e-mail access. The charging party appealed.
Disposition: The Board affirmed the dismissal because the charging party had not adequately alleged unlawful motive. However, the Board determined that employees who have access to an employer’s email system have the right to use that system during non-work time for EERA-protected communications. The employer may rebut this presumptive right of access by showing special circumstances.
Perc Vol: 42
Perc Index: 154
Decision Headnotes
300.01000 – In General
The right to “form, join, and participate” in employee organization activity is not textually limited to those activities sanctioned by the exclusive representative. Additionally, the Board has long held that this right extends to participation in group activity—or actions that are the logical continuation of group activity—not merely employee organization activity.
300.05000 – Grievances
An employee engages in protected activity by asserting a violation of a labor agreement even outside the contractual grievance process.
300.05000 – Grievances
Grievance processing, whether done by an individual seeking to invoke the protections or benefits of a collectively bargained agreement, or by the exclusive representative seeking to enforce its agreement, is protected activity.
300.15000 – Speech
In general, an employee’s speech is protected if it is related to matters of legitimate concern to the employees as employees.
300.15000 – Speech
The right of discussion is not limited to conversations about matters specific to the bargaining unit. School employees and employee organizations have a right to communicate at the worksite, free from employer restriction, about specific terms and conditions of employment as well as matters of more general political, social or economic concern to employees. This right is limited if the relationship between the political activity and the employment relationship is so attenuated as to lose its protection.
300.15000 – Speech
Speech advocating a change in federal spending priorities on education was not so attenuated from the legitimate subject of instructor pay as to lose its protection.
300.17000 – Other
The Board will presume that employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in EERA protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.
501.01000 – In General; Elements of Prima Facie Case
The “but for” test is how PERB assesses the employer’s affirmative defense once a charging party has established a prima facie case of retaliation. It is irrelevant to the analysis of a prima facie case.
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications
Taking adverse action for unsubstantiated reasons may be evidence of unlawful motive.
504.08000 – Cursory Investigation
Insufficient allegations of a cursory investigation where charge alleged trivial errors in letter from employer and failed to establish that the employer had a practice of interviewing employees in similar circumstances.
504.14000 – Other/In General
The Board has found direct evidence of motive when an employer announces that it is taking or has taken an adverse action because of or in response to an employee’s protected activity.
505.01000 – In General
The “but for” test is how PERB assesses the employer’s affirmative defense once a charging party has established a prima facie case of retaliation. It is irrelevant to the analysis of a prima facie case.
501.03000 – Knowledge of Protected Activity
Charge failed to demonstrate employer knowledge of employee’s prior PERB charges. Although employer was aware of a settlement agreement, it was not necessarily aware of the agreement’s contents. Employer’s reference to a court decision discussing the agreement was a readily apparent explanation for its knowledge of the agreement.
1100.08000 – Pleading Requirements
Conclusory allegations without supporting facts are insufficient to establish a prima facie case.